Stout v. Long et al

Filing 152

AMENDED MEMORANDUM OPINION and ORDER, vacating 134 MEMORANDUM OPINION and ORDER. Signed by Honorable William P Johnson on 12/14/16. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
THERESA STOUT, as personal representative of the
Estate of Christopher Stout,
Plaintiff,
v.

Case No. 14-cv-427-WPJ

UNITED STATES OF AMERICA, et al.,
Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
AND
ORDER VACATING THE COURT’S PREVIOUS MEMORANDUM OPINION AND
ORDER (DOC. 134)1
THIS MATTER comes before the Court upon Defendant United States’ Motion to
Dismiss (Doc. 100), filed October 29, 2015. Having reviewed the relevant pleadings of the
parties’ and the applicable law, the Court finds that Defendant’s motion is well-taken and
therefore GRANTED as herein described.
FACTUAL BACKGROUND
Given the filings to date, the Court assumes the reader’s familiarity with the factual
allegations underlying this action. However, the Court highlights relevant procedural
developments. The United States filed a Motion to Dismiss (Doc. 100) on October 29, 2015.
Plaintiff Theresa Stout (“Plaintiff”) filed a Response (Doc. 103) on November 30, 2015. The

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This Amended Memorandum Opinion and Order changes only the basis for the Court’s dismissal of the United
States to clarify that such dismissal is jurisdictional pursuant to Rule 12(b)(1) rather than on the merits pursuant to
12(b)(6). See Doc. 134, at 5. Plaintiff does not invoke this Court’s subject matter jurisdiction because she failed to
establish that Oklahoma law recognizes a comparable liability for private persons on a tort claim of failure to
intervene. See generally Lujan v. City of Santa Fe, 122 F. Supp. 3d 1215, 1238 (D.N.M. 2015) (quoting Fed. R.
Civ. P. 54(b)) (“Rule 54(b) thus (i) provides that a district court can freely reconsider its prior rulings; and (ii) puts
no limit or governing standard on the district court’s ability to do so, other than that it must do so ‘before the entry
of judgment.’”).

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United States filed a Reply (Doc. 107) on December 7, 2015. Oral argument on the United
States’ Motion to Dismiss was held on July 7, 2016.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case
for failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a
complaint to contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although a court must accept all the complaint’s factual allegations as true, the same is not true
of legal conclusions. See id. Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a
motion to dismiss, a court should disregard all conclusory statements of law and consider
whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the
defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
“Insofar as subject matter jurisdiction is concerned, it has long been recognized that a
federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every
stage of the proceedings and the court is not bound by the acts or pleadings of the parties.”
Tafoya v. U.S. Dep’t of Justice, Law Enf’t Assistance Admin., 748 F.2d 1389, 1390 (10th Cir.
1984). “Jurisdictional questions are of primary concern and can be raised at any time by courts
on their own motion.” Bd. of Cty. Comm’rs for Garfield Cty., Colo. v. W.H.I., Inc., 992 F.2d
1061, 1063 (10th Cir. 1993).

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DISCUSSION
Plaintiff’s claim against the United States arises under the Federal Tort Claims Act
(“FTCA”), alleging that the employees and agents of the United States had a duty to intervene
and prevent other law enforcement officers from using excessive force. Plaintiff alleges that the
employees and agents breached that duty when they failed to intervene to stop the firing of
approximately 75 bullets at Christopher Stout (“Mr. Stout”).
The United States first argues that Plaintiff’s claim should be dismissed for failure to
state a claim upon which relief can be granted. The United States notes that Plaintiff’s Second
Amended Complaint (Doc. 96) does not identify which officers could have intervened or the
means by which they could have intervened, contains no allegations that the officers knew that
any particular individual would discharge their weapons, and does not allege deliberation
amongst the United States’ officers regarding the shooting.
Second, the United States argues that under the FTCA, the United States is liable for tort
claims in the same manner and extent as a private individual under like circumstances. See 28
U.S.C. § 2674. Correspondingly, federal courts only have jurisdiction over claims for damages
under circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. §
1346(b)(1). Thus, the United States is not liable under the FTCA unless state law recognizes a
comparable liability for private persons. See Ayala v. United States, 49 F.3d 607, 610–11 (10th
Cir. 1995). Oklahoma state law does not impose a duty on an actor to anticipate or prevent the
intentional or criminal acts of a third party unless: (1) the actor has a special responsibility
toward the one who suffers the harm; and (2) where the actor’s own affirmative act has created
or exposed the other to a high degree of risk of harm through such misconduct. See Henry v.

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Merck & Co., 877 F.2d 1489, 1492 (10th Cir. 1989); Wofford v. Eastern State Hosp., 795 P.2d
516, 518 (Okla. 1990). The special responsibility requires a foreseeability of the specific risk to
the victim. See id. at 1492. The United States argues that Plaintiff’s Second Amended Complaint
contains no allegations sufficient to create foreseeability. Further, the United States’ officers
have no special responsibility toward fleeing fugitives, and absent some pre-shooting act of
misconduct by the United States’ officers, there was no obligation to intervene.
Plaintiff counters that the claims that the officers of the United States failed to intervene
are well supported by the facts set out in the Second Amended Complaint. Plaintiff has alleged
that there was such an extended barrage of gunfire that the officers emptied their clips and may
have stopped and reloaded, giving each officer ample opportunity to call for the others to cease
fire. Further, Plaintiff has alleged that the officers ordered Mr. Stout to raise his hands prior to
the shooting, giving further opportunity to prevent the use of deadly force. As to the United
States’ second argument, Plaintiff argues that the United States is liable under both types of
special circumstances that create a duty to anticipate and prevent the acts of a third party. First,
Plaintiff argues that Mr. Stout was no longer a fleeing fugitive and was in the officer’s custody
when the events took place. Additionally, Mr. Stout was effectively restrained once the officers
disabled Mr. Stout’s vehicle. At that point, the officers had a special responsibility toward Mr.
Stout. Next, the second exception is met when the officers pointed their guns at Mr. Stout, which
no one could reasonably question placed him at a recognizable high risk of harm. See Holland
ex. rel. Overdorff v. Harrington, 268 F.3d 1179, 1192 (10th Cir. 2008) (“[P]ointing of firearms
directly at persons inescapably involves the immediate threat of deadly force.”). The officers
who pointed their weapons at Mr. Stout thus had a duty under Oklahoma law to intervene to
prevent him from suffering unnecessary harm. Additionally, Plaintiff argues that under

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Oklahoma law, “[n]egligent performance of a law enforcement function is not shielded from
liability under Oklahoma Governmental Tort Claims Act.” State ex rel. v. Okla. Dep’t of Public
Safety v. Gurich, 238 P.3d 1, 4 (Okla. 2010). Thus, just as a private citizen in Oklahoma
conducting a citizen’s arrest would have a “special responsibility” toward the arrestee, the United
States has that same responsibility as a private person for purposes of the FTCA.
In its Reply, the United States reiterates its argument that Plaintiff has failed to plead
facts to support its argument that the officers had the opportunity to intervene and breached that
duty. Next, the United States argues that Plaintiff has failed to show that the officers had advance
notice of a shooting or reasonably knew that a shooting would occur, and thus has failed to show
foreseeability. As to the two types of special circumstances that create a duty to anticipate and
prevent the acts of a third party, the United States argues that neither should apply. First, there is
no special relationship with fleeing felons, and there are serious differences between the initial
moment of seizure and being held in the custody of law enforcement. Mr. Stout was not in the
custody of law enforcement. Oklahoma courts have followed the Restatement and limited the
obligation of protection to those instances in which the person is deprived from their normal
power of self-protection. See Restatement (Second) Of Torts § 320 (1965). Second, the officers
did not expose Mr. Stout to danger through their own misconduct, as it was the flight of the Mr.
Stout that created the need to point a weapon in his direction.2
The Court agrees with the United States’ argument that Oklahoma state law only
recognizes a duty to intervene in two special circumstances, neither one of which is present

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Formal discovery in this suit has not yet begun. However, based on the Second Amended Complaint, the parties
do not dispute that Mr. Stout initially started to drive away from law enforcement officers in his vehicle as the
officers were attempting to serve the arrest warrant. See Doc. 96, ¶¶ 19–20.

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here.3 Under the FTCA, the United States is liable for tort claims in the same manner and extent
as a private individual under like circumstances. See 28 U.S.C. § 2674. Correspondingly, federal
courts only have jurisdiction over claims for damages under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred. See 28 U.S.C. § 1346(b)(1).
Plaintiff fails to invoke this Court’s subject matter jurisdiction, because she cannot show
comparable liability for private persons under Oklahoma tort law based on a failure to intervene
in these circumstances.4 The FTCA extends jurisdiction to federal district courts for violations
of state common-law torts, as they exist among the states. See 28 U.S.C. § 1346(b)(1); United
States v. Olson, 546 U.S. 43, 44, (2005) (sovereign immunity is waived under the FTCA when
“local law would make a ‘private person’ liable in tort law”). The United States is thus liable for
tortious acts to the same extent as private individuals “in accordance with the law of the place
where an act or omission occurred.” Id. The United States is deemed liable “in the same manner
and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Put
simply, if a plaintiff cannot identify a tortious act under the law of the state where the act
occurred (in this case Oklahoma), a plaintiff cannot satisfy a jurisdictional prerequisite of 28

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In its Motion to Dismiss, the United States explicitly argued 28 U.S.C. §§ 1346(b)(1) and 2674 are jurisdictional
requirements: “[S]uits that seek to impose liability against the United States in circumstances in which a private
person would not be liable exceed the FTCA’s waiver of sovereign immunity and the courts’ subject matter
jurisdiction.” Doc. 100, at 7 (emphasis added). Hence, this Amended Memorandum Opinion and Order clarifies
that the Court agrees with the United States’ jurisdictional argument, and dismisses the United States for lack of
subject matter jurisdiction.
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The United States moves to dismiss based on Rule 12(b)(6), and its argument is premised on this Court lacking
subject matter jurisdiction to hear Plaintiff’s FTCA claim. See Doc. 100, at 7–8. Accordingly, the Court grants this
motion under Rule 12(b)(1). For example, in Norman v. U.S. ex rel. Veteran’s Admin. Med. Ctr., No. CIV-12-663C, 2013 WL 425032, at *1 (W.D. Okla. Feb. 4, 2013), which the United States cites, the defendant moved to dismiss
under Rule 12(b)(6) and Rule 12(b)(1) arguing plaintiff’s pleading would be insufficient against a similarly situated
private party under Oklahoma law. The court chose to evaluate the motion under Rule 12(b)(1) and dismissed the
defendant as a jurisdictional matter. See also Rehoboth McKinley Christian Healthcare Servs., Inc. v. U.S. Dep’t of
Health & Human Servs., 853 F. Supp. 2d 1107, 1113 (D.N.M. 2012) (court dismissed complaint under Rule
12(b)(1) due to plaintiff’s failure to comply with 28 U.S.C. § 1346(b)(1)).

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U.S.C. §§ 1346(b)(1) and 2674, and the district court should dismiss the FTCA claim for lack of
subject matter jurisdiction.
Section 1346 is jurisdictional in nature. Pappas v. United States, 617 Fed. Appx. 879,
881 (10th Cir. 2015) (quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994)) (“To state a cognizable
claim under § 1346(b), the FTCA’s jurisdictional grant, a complaint must allege the elements of
that provision, including, as relevant to the case at bar, that a private person would be liable to
the plaintiff under the tort law of the state where the act or omission occurred.”). Thus, the
Court’s dismissal of the United States based on Plaintiff’s failure to allege a private person
would be liable under Oklahoma tort law constituted a jurisdictional flaw. See Pappas, 617 Fed.
Appx. at 881 (“A claim that fails to allege facts sufficient to meet [§ 1346(b)’s] requirement
must be dismissed for lack of subject matter jurisdiction.”).
The United States cites one case which stands for this exact proposition. See Doc. 100, at
7 (quoting Norman v. U.S. ex rel. Veteran’s Admin. Med. Ctr., No. CIV-12-663-C, 2013 WL
425032, at *1 (W.D. Okla. Feb. 4, 2013) (“Plaintiff’s failure to comply with Oklahoma’s
affidavit-of-merit requirement would doom a suit against a private party under Oklahoma law;
thus, there is no jurisdiction under the FTCA, and Plaintiff’s claim against the United States
must be dismissed.”)). In Norman, the court found the plaintiff’s pleading would be insufficient
against a similarly situated private party under Oklahoma law, so the court granted the
defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(1). See id. In other words, the
plaintiff’s failure to comply with a FTCA requirement “would doom a suit against a private party
under Oklahoma law; thus, there is no jurisdiction under the FTCA and Plaintiff’s claim against
the United States must be dismissed.” See id.
Similarly here, Plaintiff’s failure to comply with the FTCA by not showing comparable state
liability dooms her FTCA claim. A duty to intervene under Oklahoma law exists only where: (1) the

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actor has a special responsibility toward the one who suffers the harm; and (2) where the actor’s own
affirmative act has created or exposed the other to a high degree of risk of harm through such
misconduct. See Henry v. Merck & Co., 877 F.2d 1489, 1492 (10th Cir. 1989); Wofford v. Eastern
State Hosp., 795 P.2d 516, 518 (Okla. 1990).
As to the first duty, Plaintiff admits that Oklahoma has not applied the law in this particular
circumstance. Situations in which a special responsibility exists under Oklahoma law have mainly
involved standard tort relationships such as those between a patient and a doctor or temporary
custody of a minor child. See, e.g., Wofford, 795 P.2d at 518 (discussing psychotherapist/patient
relationship); Brewer v. Murray, 292 P.3d 41, 49–50 (Okla. Civ. App. 2012) (discussing custody of
minor child). Under the facts as alleged by Plaintiff, Mr. Stout was not in the custody of law
enforcement at the time deadly force was used by the task force officers. Consequently, under
Oklahoma law the actor, i.e. the officers, had no special responsibility toward the one who suffers the
harm, i.e. Mr. Stout. To rule in favor of Plaintiff on this issue, this Court would have to expand the
scope of state law liability beyond that which the Oklahoma appellate courts have recognized, a task
this Court is not willing to undertake.
As to the second duty, the Court finds that Plaintiff has failed to show that the officers’
affirmative acts created the high degree of risk of harm. Plaintiff has not alleged or suggested that
there was no arrest warrant for Mr. Stout or that the task force was not permitted to arrest Mr. Stout.
Once Mr. Stout fled, it was not misconduct for the officers to point their weapons at a fleeing felon.
Also, Plaintiff has not explained how any affirmative act by each officer placed Mr. Stout in greater
danger of being shot. Rather, Plaintiff has alleged that the officers who pointed their weapons at Mr.
Stout automatically created a high degree of risk of harm through such misconduct. The Court finds
that after the officers brought Mr. Stout’s vehicle to a stop using a tactical vehicle intervention, it was

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not wrongful for the officers to then draw their weapons. Additionally, to agree with Plaintiff would
be to create a duty to intervene under Oklahoma law every time an officer drew his or her weapon.5

Accordingly, because the Court concludes it has no subject matter jurisdiction over
Plaintiff’s FTCA claim, the Court need not address the United States’ argument that Plaintiff has
failed to sufficiently allege facts to plausibly state a claim upon which relief can be granted. See
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (“Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.”); Payton v. U.S. Dep’t of Agric., 337 F.3d 1163,
1167 (10th Cir. 2003) (“Jurisdiction is a threshold question that a federal court must address
before reaching the merits.”).
The Court’s decision to grant the United States’ Motion to Dismiss is based solely on
Plaintiff’s failure to establish that Oklahoma law recognizes comparable liability for private
persons under 28 U.S.C. § 1346(b)(1) and the Court’s reluctance to expand the scope of existing
state law liability beyond that which Oklahoma appellate courts have recognized. Because
Plaintiff has not made a threshold showing to bring her claim under the FTCA, the Court does
not address the factual merits that claim. Plaintiff has failed to invoke the Court’s subject matter
jurisdiction because she cannot show Oklahoma law recognizes a duty to intervene under the
circumstances alleged.
Accordingly, the Court finds that Defendant’s Motion to Dismiss is well-taken, and
therefore GRANTED.

Plaintiff’s claim against the United States is hereby DISMISSED

WITHOUT PREJUDICE. In addition, the Court’s previous Memorandum Opinion and Order

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The Court addresses these two tort duties only to the extent they would be necessary for Plaintiff to make her
requisite showing under 28 U.S.C. §§ 1346(b)(1) and 2674 that Oklahoma tort law recognizes comparable liability
for private persons, in order to invoke this Court’s jurisdiction.

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(Doc. 134) is hereby VACATED, consistent with this Amended Memorandum Opinion and
Order.
SO ORDERED

________________________________
UNITED STATES DISTRICT JUDGE

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